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Moving from Reactive “Fire Drill” to Proactive Intelligence in E-Discovery

Created on August 28, 2012

It's the classic 21st century litigation nightmare: defense counsel is faced with a daunting discovery request from the opposing side. Ill prepared legal teams may have to scramble to identify key custodians, and locate and lock down potentially relevant electronically stored information (ESI). In a worst case scenario, they may be overwhelmed by volumes of data involved and lose sight of the actual merits of the case against them.

While e-discovery is by nature a reactive process, legal teams can – and should – be leveraging their ESI for strategic legal purposes. Ideally, defense counsel should be able to determine within the first 60-90 days of the matter:

(1) Whether there's any merit to certain elements of the complaint, and what evidence is available to support or defend those elements

(2) The likely scope of the ESI document set and potential e-discovery costs

(3) Their strategy and which key documents will advance their positions

(4) Opportunities to resolve the matter before trial either through settlement or dismissal

A proactive e-discovery strategy will go a long way towards reducing the stress and achieving these four objectives. It starts with adopting a repeatable yet flexible process, guided by documented, systematic workflows that can be initiated at the very moment a matter arises. Consistent work processes provide assurance that a proper chain of custody is maintained and affords the best opportunity to efficiently winnow relevant information from the mountains of data available.

In the traditional, reactive e-discovery model, parties respond to discovery requests by collecting data indiscriminately, imaging entire hard drives of employees barely associated with the key issues of the case. This approach is largely fueled by fear that potentially relevant ESI might be destroyed if it isn't immediately gobbled up and set aside. But documentation evidence in most cases boils down to only a handful of key documents. According to some estimates, less than 1 out of every 10,000 pages disclosed prior to trial actually result in a trial exhibit. In other words, typically there is a lot of irrelevant ESI being thrown over the transom. Besides the tremendous cost of collecting and processing gigabyte after gigabyte of unneeded data, legal teams also can lose sight of the core issues of the case as the focus shifts to simply managing data. This can be a dangerous proposition, as George Socha explains in a recent article for Inside Counsel, “Electronic data can be the noose that hangs lawyers because it is silent evidence that can be invisible until suddenly exposed."

The goal for legal teams should be to find and preserve those critical documents as early as possible so they can make informed, strategic decisions about how to proceed with the case. Following are some helpful strategies to help legal teams improve their e-discovery response:

Utilize Custodian Knowledge: Too often attorneys and the litigation support teams are the sole decision makers when formulating keyword search terms and other discovery parameters in searching for ESI. One of the most overlooked strategic assets in an organization's e-discovery arsenal is the knowledge possessed by custodians directly involved in the issues of the matter. A crucial component of proactive e-discovery is incorporating a comprehensive custodian interview process. A good interview process helps uncover all responsive ESI and arms legal teams with valuable strategic information about their case. Are there particular keywords that may point to the critical “smoking gun" documents? Are there keywords that must be accounted for based on one department's particular nomenclature? Which custodians are the most likely to possess influential ESI? Custodian interviews, when executed correctly, can provide answers to these questions and give legal teams an immediate leg up in the early stages of the matter.

Preserve Broadly; Collect Narrowly: Preservation is the backbone of defensibility because it ensures that potentially relevant documents are not destroyed. While it's important to cast a wide preservation net, especially early in the case, collections should be highly targeted. Collection can be expensive and disruptive to regular business activities (exhausting network bandwidth or rendering employees' computers out of commission for long periods of time). Targeted collections minimize these distractions while assuring that relevant information is obtained. Beyond the cost and business disruptions, over-collection makes it more difficult for legal teams to identify the truly relevant material. As Socha explains, “Because lawyers are constantly looking for needles in haystacks, searching for the critical hundreds of relevant documents among the less responsive thousands or millions of documents, the more surgical the collections and the more effective the data analysis performed before the heavy-lifting lawyering begins, the better for modern legal matters."

Leverage Technology to Gather Intelligence about ESI: When a collection is extensive, it is difficult if not impossible for legal teams to go through each document individually and draw meaningful conclusions about the case and potential legal exposure. Ideally, documents can tell a story. In many cases, a large batch of documents represents an underlying narrative, one with a start, middle and end. Ten seemingly unrelated documents found at different points in the review, by different reviewers, may hold surprising significance when grouped together and analyzed as a whole. Tools exist to help organizations uncover these patterns. For example, email threading technology links together all related messages into chronological threads that encapsulate the entire discussion, including all replies and forwards, providing a structured conversation tree. Similarly, near-duplicate technology allows discovery teams to view like-minded documents with similar content together, helping them understand the context of ESI more quickly and make decisions based on entire threads versus a single document.

To learn more about issues related to proactive e-discovery, watch Exterro's recent webcast “De-Mystifying Early Case Assessment (ECA) for Cost-Effective E-Discovery," here.